In The 1972 Report re 1935
(July 2022), there is comparison of the initial 1935 Florida workers' compensation law to 2022. Against the 1980 premise of presidential candidate Ronald Reagan's famous “are you better off today than you were four years ago?” the post suggests that in a broad analysis Florida workers' compensation offers a greater potential breadth and volume of benefits to injured workers than the 1935 law. Conceding that the analysis of whether one is or is not "better off" is likely subjective and perhaps complex, it may be that workers are in fact better off in 2022 Florida than they were in 1935 (87 years ago). Are they better off than they were 50 years ago (or, 42 years ago after passage of the 1979 law?)
In economic terms, presuming a zero-sum equation
, the conclusion that workers are better off would mean that employers are not better off. In the spirit of a Grand Bargain, that is a compromise between the interests of two protagonists, one might anticipate more equality or parity. Some might argue, however, that the workplace relationship of the 19th century was not even arguably equal and thus the advent of workers' compensation in the twentieth century was an intended gain for labor (and corresponding loss for employers) to draw employees toward parity. These same commentators might suggest that the notable gains of employees illustrated in The 1972 Report re 1935
(July 2022) are best viewed as merely more progress toward parity.
It is fair to question whether workers' compensation, or any social legislation, is ever a zero-sum equation. It is possible that better workplaces, increased safety awareness, more ready delivery of medical care, and other attributes could be a simultaneous benefit to employees, employers, and the workplace synergism. In short, one might debate whether each individual gain must have an equal and corresponding burden. Notably, one might concede each such benefit has some short-term financial burden. Additionally, if one accepts the premise that it may not be a zero-sum system, perhaps that argument remains potentially persuasive regardless of whether a particular such benefit inures to employees or employers?
Some might suggest that, long before the 1972 National Commission Report
, American labor enjoyed significant gains in safety, compensation, protection, and bargaining power. The combination of the foregoing may be viewed as materially altering the employer/employee relationship in favor of employees; to advantage or merely to or towards parity? Was there some corresponding benefit conferred upon employers in exchange for those alterations, some grand bargain?
Despite those significant, persistent, and varied employee gains in the 20th century, the 1972 Commission concluded that more was necessary, or even imperative. Notably, in 1972 when it rendered its report, some gains such as the ADA, FMLA, and OSHA were either not yet enacted or too new for prediction of efficacy and impact.
As a side-note, I have been critical of the composition of the Commission. See Friends, Romans, Countrymen
(March 2022). It was loaded with lawyers and academics. No offense to either group, but their perspective is not broadly inclusive or exhaustive. The Commission lacked any pretense of diversity in any context, excluded representation of small business, women, racial minorities, the service sector and more. When considering its recommendations, we must remember also the world has changed a bit since 1972. In short, there is much basis upon which to question the perspective of the Commission then, and the relevance of its perspectives now. From its lofty perspective, however, the group published some
"84 recommendations, 19 of which were deemed 'essential.'" In a future post, I will address those 19 in more detail.
In fairness to the 1972 Report
and its devotees and acolytes, a natural next question is whether that effort has had a lasting influence. One might pose that question regarding a significant volume of government commission reports over the last 100 years. Government is sometimes quick to appoint a commission on some topic and there have been many trees killed over the years to document and publish their findings and recommendations. The efficacy and impact of most are still worthy of debate and discussion. See Hugh Davis Graham, The Ambiguous Legacy of Presidential Commissions
, University of California Press, 1985. Perhaps the jade-colored glasses are a broader general perspective than the National Commission? In fairness, the National Commission was Congressional rather than Presidential, but the criticism or cynicism perspectives may nonetheless hold.
So, what did the 1972 National Commission Report change? First, it was merely a series of recommendations, any changes were through persuasion. Notably, the topics addressed were pre-supposed by Congress in instigating the Commission process (Congress essentially said "answer these questions"). Public trust of the Commission might have been enhanced if it had been asked a more open-ended question regarding what issues were of import and imperative, rather than close-ended directives of what Congress felt worthy of consideration ("list of subjects assigned to us for evaluation by Congress.").
Despite the Commission results being merely recommendations, the Commission concluded that its efforts should be backed by "the threat of or, if necessary, the enactment of Federal mandates" (in other words, "we think we have been persuasive and compelling in answering your pre-supposed priorities, but if not someone needs to bully the states into accepting our thoughts"). It is rare that people are persuaded by threats or coercion. That is not to say they do not work, as we learned from the federalization of state drinking ages and speed limits years ago.
In Florida, the Commission Report did impact legislative opinion. The Papy Commission (named for Charles C. Papy, Jr.
) was formed and the eventual result was the 1979 statutory amendments. These have become known in Florida as "the wage loss law," but that name fails miserably at capturing the breadth of change wrought by that law. In short, by 1979 much had changed in the world since 1910, 1935, and 1972. However, much has changed since those 1979 amendments also. How do benefits in 2022 compare with those in 1979 or 1935?
In 1935, Participation in Florida workers compensation was voluntary for either employee or employer. No mandatory coverage. In 1979, coverage was already largely mandatory, subject to various exceptions. (In 2022, Florida mandates participation of employers with four or more employees, section 440.02(16), Fla. Stat., though the challenges of independent contractors, gig workers, specific exclusions, and more complicates this). Coverage expanded after 1935, and was largely compulsory before the 1979 revisions in reaction to the Commission report. It is unlikely fair to credit the 1972 Commission with the current state of Florida's widely compulsory law.
In a recent legal program, one of the deans of Florida's law discussed his perceptions of diminishing employee benefits, without mentioning the "race to the bottom" argument periodically quoted. But, he characterized that "since the Papy Commission," Florida has moved "backward and backward and backward." This is an interesting perspective, and is perhaps directed more at burdens of proof such as "clear and convincing" evidence, the major contributing cause standard, the "level playing field" of section 440.015 and similar proof changes that define the pursuant and obtention of benefits more so than the benefits themselves.
Or, perhaps there is an argument that benefits themselves have regressed; one might make that argument as regards temporary benefits that are currently available for more than 104 weeks in total because of court action rather than legislative. Through that lens, the legislature's 104 weeks is certainly more constrained than the benefit level in 1935 or 1972. But, it is not the benefit level actually available. This argument seems to be that benefits have regressed in legislative though not actual duration and may be a more valid criticism of perspective or sentiment rather than of actual benefit volume.
The Florida courts after 1935 invented, implemented, and enforced a "liberal construction in favor of employee," which was not in the statute. In deciding what the Florida law meant, the courts periodically declined to read the statute as written and instead turned to a multitude of decisions from other states. The 1979 law did not create nor reinforce these judicial creations, which long predated the Commission and its recommendations. The present "level playing field" since 1990 corrected judicial interpretation and liberality that was never part of the workers' compensation statute, not part of the Grand Bargain in Florida, and perhaps not pertinent to the discussion of the 1972 Report
Medical care in 1935 did not specifically include attendant care. That had been added to the law before 1979 however. No medical transportation was provided in the 1935 law, but that had been "liberally" construed into the statute in 1964. Mobley v. Jack & Son Plumbing
, 170 So. 2d 41 (Fla. 1964). Transportation for medical care had been codified in section 440.13(4) prior to 1979, and cannot likely be therefore viewed as a response or reaction to the 1972 Report
What was compensable in 1935? Accidents were. Emotional injury was not mentioned in the statute. Occupational Disease was not in the statute until 1945. Some of the early cases finding such disease instances compensable inferred compensability from reference to other state decisions (1937), inferred more generally (heart attack in 1962; aneurysm in 1978). Coverage of Occupation Disease had been included in the statute with the adoption of section 440.151, Fla. Stat. in 1945. This addition to worker's potential benefits cannot be said to have emanated from the 1972 Report
Repetitive trauma injuries were not mentioned in the 1935 statute and were not "accidents" or compensable until the Court inferred compensability in 1980. Festa v. Teleflex, 382 So. 2d 122 (Fla. 1st DCA 1980). There are curiosities in this judicial expansion. The Festa decision seemingly ignored long-standing precedent that had held repetitive trivial trauma not included in the statute. One might argue that what changed is the 1972 Report, thus "public sentiment," and perhaps the Court's expansion was driven by that sentiment instead of the law. Perhaps a case could be made that the 1972 Report resulted in or influenced the compensability of repetitive trauma.
Permanent total disability (PTD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents. The benefits were capped at about 7 years (350 weeks) of entitlement. The 1979 law changed this to 66 2/3% (which remains in 2022). The seven-year cap had long been removed prior to 1979. Thus the increase in weekly amount could be attributed to the 1979 Report, but not the largely un-capped duration. As that remains in 2022, it is difficult to conclude there has been any retreat from the positive impact of the 1972 Report
Death benefits in 1935 were paid at 50% to 60% of AWW, depending on number of dependents. These were likewise capped at about 7 years (350 weeks) of entitlement. In 1979, death benefits increased to include funeral expenses up to $1,000 and compensation benefits payable at 50% to 66.67% depending on number of dependents, capped at $50,000. In 2022, the cap has increased to $150,000, and there is an additional benefit of up to 80 semester hours of classroom education to surviving spouses. The percentage calculation (66.67%) is clearly attributable to the 1972 Report
and recommendations. The duration of, cap on, benefits was not purportedly changed in 1979, and the additions to the death benefit largely occurred after the 1979 amendments. It is difficult to attribute significant credit for the modern, more robust, death benefit provisions to the 1972 Report
Temporary Total (TTD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 7 years (350 weeks) entitlement. The 1979 law increased this to 66 2/3%. The increase in weekly benefit, which persists in 2022, is likely attributable to the 1972 Report
. While there has been fluctuation in the durational cap, the cap was 350 weeks prior to the 1979 amendments and remained so in 1979. It is notable that the duration cap in 2022 is 260 weeks (about 5 years), and is so by action of the Court rather than legislative amendment (this had been legislatively reduced to a combined 104 weeks of TTD and TPD in 1994). In temporary benefits, the increased weekly amount is attributable to the Report, but the duration-cap discussion is far more difficult as a direct corollary or effect. The decrease of the cap is, perhaps, supportive of Mr. Pierce's criticism of reduction of benefits, see The 1972 Report re 1935
Temporary partial disability (TPD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. The 1979 law changed this to "95 percent of the difference between 85 percent of the employee's average monthly wage" and the post-injury earnings. In instances of zero earnings post-injury, this was mathematically a potential 80% of pre-injury earnings (.85 x .95), but was capped at 66 2/3%. This increase in weekly benefit is likewise fairly attributable to the Commission Report. The durational cap in 1979 was 5 years. Thus the duration in 1979 remained similar to the 1935 statute, and remains similar in 2022. It is fair to credit the Report some in TPD as to weekly amount, but the impact is narrow and there are no indicia of any retreat from the Commission recommendations
(but see discussion of combined duration caps above in TTD).
It is fair to attribute accommodations for retraining and education to the 1979 law. This included the requirement for payment of temporary indemnity benefits, subject to the caps discussed above, for periods in which a worker engaged in training and education. While this benefit can be thus validly attributed to the 1972 Report
, the impact of training and education has been frustrated in broadly reducing either disability effects or enhancing employability. There are various reasons debated regarding these impacts, but the concept is clearly attributable to the 1972 Report
Permanent partial disability (PPD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. These benefits were largely tied to anatomical loss or loss of function. A major impact of the 1979 law was the implementation of "wage loss" that would pay 66 2/3% for up to 10 years following maximum medical improvement. This major change can be fairly attributed to the 1972 Report. The volume of permanent partial has been markedly diminished in some cases since that time, and PPD is often noted by commentators in support of arguments that benefits are diminishing.
In 2022 PPD is these are tied to impairment rating, and the 66 2/3% calculation. Thus, some of the addition attributable to the 1972 Report
remains, the impairment model of 1935 has largely returned, and potential entitlement of the cap is arguably much more significant now than in 1935, and similar to the maximum allowed in 1979 (10 years). The impact of the Report in PPD is more profound, and the retreat to pre-1979 law is more patent. However, benefits remain in 2022 arguably consistent with the original Florida Grand Bargain.
In 1935, there were only four statutory presumptions in the Florida statute: (1) The claim comes within this law’s provisions; (2) that sufficient notice was given; (3) the injury was not caused by intoxication; (4) injury not caused by willful intent to injure or kill. In short, there were no presumptions for heart/lung disease, cancer, PTSD, or otherwise. Those presumptions had been deleted prior to the 1979 law changes. The 1979 law change did not include the various presumptions that exist in 2022 for treating certain diseases more generously for certain employees, such as "tuberculosis, heart disease, or hypertension," certain mental injuries (PTSD), and exceptional benefits for certain cancers. It is fair to conclude that the 1972 Report
did not instigate change regarding presumptions.
There was no provision in the 1935 law to encourage the hiring/retention of individuals with impairments or disabilities. There was no state law implementing a second injury fund assessment to encourage such employment. Florida added a Special Disability Trust Fund, a "second injury" fund prior to 1979, but its scope, application, and operation are significantly defined in that 1979 law. It is fair to attribute this change to the 1972 Report
, and while its operation benefitted employees, this is one of the changes that also had a positive impact on employers in socializing risk more broadly.
In The 1972 Report re 1935
(July 2022), I concluded that the Florida workers' compensation law notably, perhaps significantly, offers broader and greater potential benefits to injured workers in 2022 than did the 1935 law. It is noteworthy that the constitutionality of the 1935 act was considered by the Florida Courts, but never deemed infirm. There are various examples, but the following are interesting reading: State ex rel. Jacksonville Gas Co. v. Lewis
, 170 So. 306, 307 (1936); S. Atl. S.S. Co. of Delaware v. Tutson
, 190 So. 675 (1939); Hardware Mut. Cas. Co. v. Carlton
, 9 So. 2d 359 (1942).
While there are also demonstrative examples of benefits regressing, such as the 104 week cap on temporary benefits in 1994, the basket of benefits available in 2022 is strikingly similar to those available under the 1979 amendments, the reaction to the 1972 Report
. There are points on which debate may yet occur, including permanent partial disability, but overall the gains for injured workers in the 1979 amendments remain in 2022. And, the broader context of change in federal laws mentioned above each remain. In short, the last 100 years has been demonstrably favorable to the worker.
This is not to discount that some see the states moving away from the 1972 Report
recommendations of the Commission. I respect the recent notation that whenever "a benefit goes up, something is taken away." (see Observers Say States Moving Away from National Commission Recommendations
, WorkCompCentral, July 12, 2022; pay site). I know some of the laws across the country, but an analysis of this magnitude of each state is beyond my capacity. In any such discussion, whether such observations are valid will depend entirely upon which state's law is being examined and perhaps on how detailed and focused the analysis is.
Whether Florida workers or employers or both are "better off today" than in 1935 or 1979 is up to the reader. However, the Florida response to the 1972 National Commission Report
, the statutory reforms in 1979 discussed above and the current benefit measures in 2022 (breadth and duration) are worthy of consideration.
In the end, regardless of your perspective, participation in the debate and discussion of workers' compensation is critical. We must all be respectful of the contributions and opinions that are put on the table, and conversations need to be frequent and congenial. That will be the case at the 2022 Tennessee Workers' Compensation Conference on August 15, 2022
I look forward to an animated and engaging conversation with Hon. Paul Sighinolfi
, Mr. Pierce
(employee attorney, Massachusetts) and Ms. Fazio
(Employer attorney, Tennessee). This discussion promises to be a balanced consideration of the historical significance of the report, the state of workers' compensation today, and the challenges of our perceptions of it all. If I get too long-winded, someone kick my shins and I will shut up and give others a chance.